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1904 DIGILAW 93 (ALL)

Mangli Prasad v. Pati Ram

1904-05-27

AIKMAN, KNOX

body1904
JUDGMENT : Knox, J. The respondent, Pati Ram, brought a suit based upon two mortgages executed in his favour by ‘Jhunni Lal, deceased’ husband of Musammat Jhunna. To this suit he impleaded as defendants Musammat Jhunna, aforesaid, as representing the mortgagor and Mangli Prasad who held a prior mortgage over the property. The relief he asked for was that the defendants be ordered to pay the amounts due under the mortgage deeds, and that in case of default he might recover the same by sale of the property. Upon the terms of this relief it is clear that what he wanted was the money due to him, and that he was willing to take it from both or either of the defendants. He went on to ask that if the Court held that he was bound to pay the amount due under the prior mortgage to the defendant, Mangli Prasad, he might be directed to do so. The Court of first instance gave the plaintiff a decree ordering that the defendants, Musammat. Jhunna and Mangli Prasad, pay in the sum due upon the mortgage deeds sued upon as well as Mangli Prasad's mortgage deed. On appeal by Mangli Prasad and objections filed by Pati Ram the lower appellate Court con-firmed the decree, of the Court of first instance with this modification, namely, that the appellant, Mangli Prasad, had no right to redeem the mortgaged property. It is from the addition thus made by the lower appellate Court that Mangli Prasad has appealed to this Court. He does, in the memorandum of appeal, raise other pleas, but the sole point urged by the learned counsel, who appeared for him, was that he has the right under the circumstances to pay off the plaintiffs mortgage. It appears that Mangli Prasad's mortgage was a usufructuary one. His father, the original mort-gage, at the time when the mortgage was entered into leased the property to the mortgagor. 2. The rent fell into arrears and Mangli Prasad got a decree in the Revenue Court for those arrears. In execution of this decree he brought the equity of redemption to sale and himself became the purchaser. There is no doubt that this sale was in direct contravention of the provisions of section 99 of the Transfer of Property Act. 2. The rent fell into arrears and Mangli Prasad got a decree in the Revenue Court for those arrears. In execution of this decree he brought the equity of redemption to sale and himself became the purchaser. There is no doubt that this sale was in direct contravention of the provisions of section 99 of the Transfer of Property Act. Still the fact remains that the mortgagor took no objections either then or now, and that the sale became final. In a somewhat similar case, Tara Chand v. Imdad Husain, [1896] I.L.R., 18 All., 325 the Court held that neither the judgment-debtor nor the judgment-creditor can dispute the title which the mortgagee obtained by the purchase. The learned counsel for the respondent contends that as Ids client was not a party to those proceedings, he is not bound by them. Had this been a suit for redemption, pure and simple, there might be some force in tin's contention. But seeing that the primary object of the plaintiff's suit as stated by himself was to get his money from the defendants, and that the decree, as framed by the first Court, gives him all the relief he wanted, we think that the decree of the Munsiff ought to have been allowed to stand. We allow the appeal, and setting aside the decree of the lower appellate Court, restore that of the Court of first instance with this modification that in lieu of 15th November, 1902, stated therein, the date of 15th August, 1904, be inserted and in lieu of Rs. 1,22410 the sum of Rs. 1,21630 be inserted. The parties will bear their costs here and in the lower appellate Court.